by Sophie Nieto-Munoz, New Jersey Monitor
A case that will determine whether New Jersey towns should be forced to release email addresses of residents who sign up for publicly funded newsletters will be heard by the New Jersey Supreme Court, officials announced this week.
The case is rising to the high court after an appellate panel ruled in favor of towns that argued the privacy interests of residents outweigh the “minimal” public interest in disclosing their emails, in this case to South Jersey nonprofit Rise Against Hate.
The appellate judges also said municipal email distribution lists are exempt from the Open Public Records Act, but the plaintiffs’ attorneys argue the law makes no such distinction.
“Towns gather these email lists to send out emails to residents for a variety of valid reasons, but they also become tools for incumbents to spin their accomplishments,” said attorney CJ Griffin, who represents the nonprofit. “Rise Against Hate just wants to be able to let residents know about racial disparities in policing, rises in bias crimes, pay disparities … all stuff the local politicians likely wouldn’t send an email blast about.”
Griffin has represented NJTODAY.NET and the New Jersey Monitor in various legal matters.
The case began with records requests Andrew Jung of Rise Against Hate filed with Bridgewater, Cherry Hill, and West Deptford seeking emails from residents who signed up for “town notice” and “weekly update” email blasts.
He filed the requests in 2020 and 2021 so he could use the towns’ email distribution lists to send crime statistics and news about local civil rights issues to residents, and did not request any other personal identifying information, according to his lawsuits against the towns.
All three clerks denied the requests, citing privacy provisions of the Open Public Records Act. A Cherry Hill clerk said the information is protected from public disclosure under that state law, while a Bridgewater custodian denied the request on the grounds that it would violate the reasonable expectation of privacy of the people who signed up for the town’s emails.
The Open Public Records Act, which dates to 2002, bars records custodians from releasing email addresses contained in specific records, like hunting licenses, firearm records, and communications to legislators. Municipal clerks must justify redactions and denials.
After Rise Against Hate sued over the denials, trial judges ordered all three towns to release the requested documents. The municipalities appealed and consolidated their cases into one.
The appellate court’s March ruling notes that a 2004 study commissioned by the Legislature to study improving the state’s public records law suggests making email addresses confidential, comparing them to unlisted home phone numbers. The Legislature did not adopt those recommendations.
The appellate judges acknowledged lawmakers’ inaction but cited the study when siding with the municipalities. The judges wrote that residents who provide emails for municipal newsletters have “an objectively reasonable expectation that their email addresses will not be disclosed to a non-government organization that intends to send unsolicited emails to further the organization’s political and social objectives.”
In a motion to the Supreme Court that Griffin filed in May, she charges that decision is at odds with the language of the Open Public Records Act and the Legislature’s decision not to amend it to specifically exclude the release of email addresses.
The new standard proposed by the appellate ruling would require people to justify their interest in seeking email addresses and “ignores OPRA’s plain language and legislative history,” she wrote.
Griffin worries that the appellate decision will lead to agencies denying more records requests. Lower courts and public agencies could cite it “even though it is so clearly wrong,” she wrote in a court filing in the case. Even the Appellate Division said that at most there was a minimal privacy interest and no real harm would flow if the list is disclosed, she said.
The Supreme Court is expected to start hearing cases again in the fall.
“We hope to prevail, which means Rise Against Hate will get the email list (just as we have from many other agencies) and be able to educate residents about important civil rights issues,” she said.